Bram Akkermans

Article 345 TFEU (ex Article 295 EC), Its Meanings and Interpretations

Research that has been conducted over the last decades shows that neither the scope of application nor the exact meaning of Article 345 TFEU (ex Article 295 EC) is clear from its wording. This article seeks to clarify its meaning through analysis of the drafting of the Article as well as the use of it by the EUs institutions and by the Member States. Article 345 TFEU, formerly Article 295 EC and, before that, Article 222 EEC, is an Article that limits, but not prevents, the application of the TFEU Treaty as a whole to the way in which rules of a Member State deal with the right of ownership of undertakings. The conclusion can be drawn that Article 345 TFEU only concerns the private or public ownership of undertakings, with which the Community shall not concern itself and which can thus be regulated by the Member States themselves. Most importantly, the Article does not concern the content of the right of ownership, nor the objects of a right of ownership. It does therefore not form an obstacle to the development of a European property law.

The Numerus Clausus of Property Rights

The numerus clausus of property rights is one of the fundamental principles of property law (Van Erp 2006a; Akkermans 2008). It refers to the idea that both the number and content of property rights is limited and is traditionally placed in contrast to party autonomy that reigns in contract law. Property rights are special rights because they have effect against third parties, usually against everybody else. The holder of such a right is therefore in a more powerful position than the holder of a personal right, which is a right that is only valid between two, or at least a limited category of persons. Strongly connected to the effect of property rights is the role of property law itself. Property law in many perspectives is transactional law and deals with the way in which property rights can be created, transferred and destroyed (Van Erp & Akkermans 2012). These rules are mandatory rules and can therefore not be deviated from by the parties creating, transferring or terminating property rights. However, there is an inherent tension in these mandatory rules, both regarding property rights themselves as well as the transactional rules that govern them. This tension exists in the way in which property law operates. In almost all cases, to start applying property law an initiating legal act in another field of law is needed. Most of the time this is contract law, where contracts of sale provide the seller with an obligation to transfer his or her property right, or with a contract between parties seeking to establish a property right. Alternatively, the initiating act lies in the law of marriage or succession, where either property rights become jointly held, or pass to heirs or legatees. All of these areas, contract, marital property law and succession law are characterised by the possibility for parties to give content to their legal relationship. Party autonomy therefore enables contracting parties to provide conditions and make special arrangements in terms of the functioning of property law, spouses can make a marriage contract governing the property relations between them and through a last will anyone can determine, within the limits of the applicable succession law, what happens to his or her property after he or she passes away. For centuries, therefore, parties have sought to introduce flexibility in property law to mirror the flexibility they enjoy in contract, marital property law and succession law. However, the rules of property law, especially due to the principle of numerus clausus that prescribes the available property rights and their content, prevent such flexibility. The reasons provided for this spring directly from the nature of the closed system of property rights and are therefore worth considering. Moreover, approaching numerus clausus from this perspective also sheds light on the limitations of property law and explains the rise of contract law to a considerable degree.This contribution will focus on the origins of numerus clausus (section 2) and its scope (section 3), before turning attention to different academic perspectives on numerus clausus, such as legal doctrinal and law and economics (section 4). At the end of this section the focus will be on the future of property law and the role numerus clausus can play in this respect.

Free movement of goods and property law

Although usually considered a national competence, there is an effect of internal market law on property law. When a property right is validly created in one Member State and the object on which it rests is moved to another Member State, an internal market dimension arises. Such has been the case in the ECJs Krantz decision 25 years ago, dealing with the question on whether the rules allowing a seizure of goods owned by someone else in another Member State and leading to a potential loss of right is in conformity with EU law. More than 25 years have passed and our thinking about the internal market as well as the free movement case‐law has changed significantly. A re‐examination of this decision leads to a different conclusion: the refusal to recognise property rights validly created in another Member State violates the free movement of goods under Article 34 TFEU.

The future of European property law

European integration has a growing impact on the property law systems of the EU Member States. The tensions which can be seen are considerably greater than in other areas of private law, given the technically complex and mandatory nature of property law. In this book, current developments in European property law (particularly the Draft Common Frame of Reference) are analysed and evaluated, focussing on secured transactions and mortgage law. With contributions by academic and practicing lawyers, containing: - Transfer of ownership and good faith acquisition: the rules in the Member States and in Book VIII of the DCFR - Secured transactions and the DCFR - Registration of intellectual property rights - Trusts - from a Common and a Civil lawyer’s perspective - The border area between property law and contract law: securities

A comparative overview of European, US and South African constitutional property law

Traditionally, there is a distinction between private law property law and constitutional property law. Private-law property law concerns itself with the relations between two private parties in respect to an object or thing. This area of law has, depending on the type of legal tradition, been in development since Roman times (civil law) or since the battle of Hastings in 1066 (common law). Its principles and doctrine are aimed at facilitating trade between private individuals, the recognition of a limited set of rights with property (third party) effect, and rules on the creation, transfer and destruction of those rights. Constitutional law adds a dimension to property law that is mostly neglected by private-law property lawyers. Textbooks of property law, especially in European countries do not deal or only make mention of the existence of a constitutional dimension. Constitutional law and its influence on the law of property deserves a central place in any comparative study on the law of property. However, private-law property scholars, of course with the exception of some, often do not take knowledge of the constitutional dimension. This contribution is a descriptive contribution and seeks to show some of the basic aspects of constitutional property law. Keywords: Constitutional Property Law; Takings, Expropriation, 5th Amendment, A1P1, EU Constitutional Property Law.

Sustainable property law

In the past year the north of the Netherlands has gone through some turmoil as a result of several earthquakes. These earthquakes are the result of gas excavation that is made by the Nederlandse Aardolie Maatschappij (NAM). It is not the first time that land owners suffer damage through such earthquakes, but a solution is not easily found. There is great economic pressure on the Dutch government to keep excavating gas, but also great social pressure to significantly reduce the excavation or even bring it to a complete stop. Land owners have been seriously affected, not only by damage to their houses and other buildings, but also by unrest in society. Residents don’t feel safe and this negatively affects their enjoyment of property too. The Dutch experience is a manifestation of a problem arising from the way in which humankind is treating the planet. Fossil fuels, such as oil and gas, are finite by nature and excavating seriously affects the enviroment as well as nearby land owners. Dealing with the challenges raised by our fossil energy supply and our transition to newer and safer forms of energy is actually the seventh of the 17 UN Sustainability Goals, which follow from the 2030 Agenda for Sustainable Development. Other sustainability goals include ending poverty, protecting our water and land resources and dealing with climate change. An increasingly more pressing question is how we deal with this as private lawyers. Our private law systems, especially our property law systems, are the result of 19th century political, economic and legal thinking. As anti-feudal systems, rejecting the common and sometimes very sustainable solutions of local customary law, under reference to Roman law and by using a straightforward economic model of welfare maximisation, a liberalist legal system was given shape that allowed each individual to acquire property and accrue wealth. Own-

Faculty of Law: MaRBLe for Lawyers

The Maastricht University Research Based Learning (MaRBLe) project offered a unique but challenging opportunity to the Faculty of Law. Working with undergraduate students on research was already part of curricular teaching activities, but the number of students, and collaboration between students and students and staff involved in MaRBLe projects, was unprecedented. Moreover, law degree curricula offer additional challenges as the content of these programmes is heavily determined by requirements from regulated professional organisations. Several staff members of the Faculty of Law were prepared to launch faculty-initiated undergraduate collaborative research projects, and over the course of 5 years, a number of successful projects have been offered. Although research-based learning does not come naturally to a faculty with a highly regulated programme, the introduction of more research-based elements into the curriculum, either through separate projects or through upgrading of existing courses, has had an irrevocable effect. This case study of MaRBLe at the Faculty of Law details the faculty’s approach and the pragmatic solutions to problems we have encountered. This chapter also includes an in-depth description of two MaRBLe projects, the lessons learned, a discussion on the future of MaRBLe and the main conclusions.

Embargo – a new property right in South African Law: Willow Waters Homeowners Association (PTY) Ltd v Koka (768/13) [2014] ZASCA 220

The South African Supreme Court of Appeal recently handed down a judgment in the case ofWillow Waters Homeowners Association v Koka, in which a new type of property right was recognised. New types of property rights are rare, and any case in which they arise deserves special attention as they may inspire the creation of new types of property rights elsewhere. The recognition of new types of property rights is rare, but does happen from time to time. In French law, for example, in 2012 the Cour de casssation recognised a perpetual property right to use and the property right to cut down trees. In most systems of property law, new types of property rights are a theoretical impossibility, as these systems adhere to a numerus clausus, i.e. a closed system, of property rights. However, there are some legal systems in which it is unclear whether there is a numerus clausus, such as French Law, or that adhere to an open system of property rights. Open systems of property rights are rare and the term is

Introduction to law

1. Foundations by Jaap Hage.- 2. Sources of Law by Jaap Hage.- 3. Basic Concepts of Law by Jaap Hage.- 4. The Law of Contract by Jan Smits.- 5. Property Law by Bram Akkermans.- 6. Tort Law by G.E. van Maanen and Jaap Hage.- 7. Criminal Law by Johannes Keiler, Michele Panzavolta and David Roef.- 8. Constitutional Law by Aalt Willem Heringa.- 9. Administrative Law by Chris Backes and Mariolina Eliantonio.- 10. The Law of Europe by Jaap Hage.- 11. International Law by Menno T. Kamminga.- 12. Human Rights by Gustavo Arosemena.- 13. Elements of Procedural Law by Fokke Fernhout and Remco van Rhee.- 14. Philosophy of Law by Jaap Hage.

Review of: Principles, definitions and model rules of European private law. Draft Common Frame of Reference (DCFR)

At the end of 2009 the – for now – fi nal work of the joined network on European Private Law, also known as CoPECL, fi nally appeared. In this six-volume and much-awaited edition, the Study Group on a European Civil Code and the Research Group on Existing EC Contract Law, better known as the Acquis group, present the full edition of the Draft Common Frame of Reference. Th e Draft Common Frame of Reference, or DCFR as it has become quickly known, is a large body of model rules accompanied by comments and comparative notes by its draft ers. Th e body of rules without comments and notes had been published twice before, once in 2008 as an interim outline edition, and once at the beginning of 2009 as the outline edition. Th e outline edition has already given an overview of the rules and scope that the DCFR has. It covers not only contract law, but also areas of tort, unjust enrichment and property law. Before its publication, the content of the work had not been public. Th e working groups kept their ranks strictly closed. Occasionally, parts of the work were made public in conferences and publications. Clarity for the outside world was further clouded as both of the main working groups within the CoPecl network also published their own principles. Th e Study Group on a European Civil Code, headed by Prof. Christian von Bar, sought to improve the existing Principles of European Contract Law (PECL) and published a large book series known as Principles of European Law (PEL). Th e Research